We're Thinking About the Court All Wrong

So Justice Kennedy announces his retirement and the internet blows up. Liberals are screaming in fear because they believe the court will be stacked against them for the next 20 years, and conservatives (or whatever they are nowadays) are shouting in triumph that they will finally have a bulletproof majority on the Court.

All of this is wrong. All of it.

I get that the court is, by necessity, something of an all-or-nothing institution. When it makes rulings, its rulings stand - at least until a later court overturns them. Another casualty of the politicization of the law may be the stare decisis standard, which appeared to take a bit of a hit today in the Janus case. I fear that future courts, both right and left, will see their job as undoing the work of the "other side" in the previous generation.

The reality is that we live in a diverse, often divided nation. And we live under a political system that is supposed to value that diversity, and to produce outcomes that, however imperfectly, reflect everybody's voices. If only 20% of people want something, they shouldn't be able to impose their will on the other 80%. That's what we call democracy, and it's what we all claim to value.

Yet the celebration on the right, and the yearning on the left, for a court supermajority are both repudiations of these foundational ideals. It's not just that the court is (by some necessity) a non-democratic institution. How we think about the court betrays how little we really value our democracy.

Take the issue of Roe v. Wade, one of the most oft-cited cases for the importance of getting "your" side to dominate the court. I get that there are people who believe that abortion should be eradicated entirely. I also get that there are people who would like it to be restricted much more than it is. Just as there are people who think it should remain available, and people who would like to widen that availability. I spent a semester in grad school poring over General Social Survey data on Americans' attitudes towards abortion. They are diverse, and remarkably stable, and on balance tend to fall into the "keep it legal but hopefully rare" area, with a large standard deviation around that mean.

So if you celebrate winning a supermajority on the court so that Roe can be overturned and abortion made illegal everywhere, you're in essence saying that winning a complete and total victory on this issue is more important to you than democracy. That even if your view is only held by 20% of the American population, you think you should win anyway and impose that view on the 80% who think differently.

The alternative approach, which is actually far more consistent with our claimed democratic values, would be to try to persuade enough of that 80% to see things your way, so that your view prevails across the population. This is basically why gay marriage is legal now - not because a court said it should be, but because over the course of a couple of generations most Americans have come to agree that people should be able to marry whom they want. Want to change that? Convince them back the other way (good luck).

That approach hasn't worked well on abortion, as the GSS data shows. Hence the arguing over the court - and the hidden abandonment of democratic ideals.

You can substitute any number of other issues for abortion here - gun rights, labor unions, travel bans, take your pick. For those who take the "long view" on the court, who are looking out over the next 20-30 years, it's not any one issue. It's the desire to see "their side" win all of the battles over that period.

If we really believed in democracy - if we really believed that we make our best decisions collectively when everybody's voice is in the mix - we wouldn't want a supermajority on the court. Or a permanent majority in Congress, as Karl Rove used to dream of. If we really believed in democracy, we would want Justice Kennedy replaced with another moderate, swing-voting judge. If Elena Kagan stepped down, we would want her replaced with another liberal justice. If Clarence Thomas retires, we would want him replaced with another conservative.

If we really believed in democracy that's what we all would want, regardless of our own personal views. But we don't really believe in democracy. We only support it when it means we get to win.

All of this is compounded by the fact that we are living through the most anti-democratic Presidency in modern US history. Trump has not the slightest regard for the views of others, and - by his own repeated admission - he wants to win all the time. He doesn't care about what other people think. If he could impose his will on the world, he would, even if nearly everyone disagrees with him.

The mood of the country as a whole is increasingly anti-democratic. Sure, lots of folks are saying, go out and vote. Voting is not a reliable indicator of democracy - just ask Zimbabwe, or pre-1990 South Africa, or Saddam Hussein's Iraq. On all sides, the act of voting - indeed, all political acts - have taken on existential proportions. Everything has become Chuck Norris' "1000 years of darkness" warning, on all sides.

Don't believe me? Watch Tucker Carlson, speaking to a national audience of millions, equate the desire to welcome immigrants with suicide. Translate that into Kinyarwanda and Carlson would fit in nicely with RTLMC radio just ahead of the Rwandan genocide.

This is not Schoolhouse Rock America anymore. We are not e pluribus unum - rather, our motto ought to be e unum pluribus. Out of one have come many. Where there was one nation, united by a common set of political values, now there are many, divided by fear and anger and hatred.

For those who look at Kennedy's retirement and say, this is why I voted for Trump - who believe that for all of his faults and problems, it was worth it to "secure the court" for the next generation - you're entitled to your reasons. If you feel happy today, you're entitled to that too. What you're not entitled to do is claim that you value democracy. Because in the end, if we don't value each other more than we value winning out over each other, then what are we?

Free Speech and Our Upside-Down Ideologies

For those inclined to believe there is only one right way of thinking about "free speech", especially on college campuses, this summary news article is worth reading:

A More Nuanced View of Law on Campus Speech

As I mentioned in a brief post yesterday, I am old enough to recall a time in the past when "conservative" meant something very different - even radically opposed - to its meaning today. Growing up in the 1970s, I watched the conservative movement try to make sense of the upheaval of the 1960s.

Free speech - the kind of free-for-all "marketplace of ideas" position described as one pole in the article above - was largely a cause of the Left, which saw society as stifling dissent and diversity and wanted new voices (African Americans, Latinos, women, LGBTQ, and others) to have a place.

The conservative response was the other pole: the "order and morality" theory, in which the good of society and societal order and the prevailing norms and mores of the day were held to be important. Indeed, that's what "conservative" meant - a desire to preserve the values of the past and present, to "not throw the baby out with the bathwater". Rousseau's Social Contract - a forerunner to what used to be called "conservative" - sought to provide the stability necessary for human thriving.

Like many great debates, both sides had a point. Existing social norms and structures of the 1950s and 1960s were indeed stifling and repressive, especially to women (who were confined to very restrictive roles in society) and ethnic, religious, and sexual minorities. However, all well-functioning societies do need a level of order and common understandings of morality.

The battle of the 1960s was about how to change the repressive nature of those common understandings without tearing the country apart entirely. We succeeded, but only just.

Fast-forward to today, and the positions have entirely reversed. Self-proclaimed "conservatives" are now the ones who have thrown the order and morality position out the window. They are the ones who are arguing that any speech, no matter how offensive or harmful, must be protected, even celebrated. They organize provocative events around speakers who are noted not for their wisdom or their contribution to important debates, but for their ability to inflame and insult. Indeed, sometimes that appears to be the entire point of the exercise.

It is sadly ironic that the descendants of those who once argued that order and morality matter are now defending the position that neither order nor morality count for anything, and that freedom should be infinite and absolute. This puts the Left in the position of discovering the value of common decency and the virtue of order and stability - a somewhat strange place for a movement built on (sometimes revolutionary) change.

There were excesses during the 1960s, when we threw out rules about how we should treat each other in the service of fostering change. We are now throwing those rules out again (as I remarked on yesterday) - but in the service of what? I don't see that today's firebrand conservatives have a vision of a more just society and a better future. MLK had a dream of racial and economic justice, and the feminist movement yearned for a world in which women were economic and social equals to men. What vision do these folks have? What kind of a world are they trying to create?

I think this may be the key difference this time around. The movements of the 1960s, for racial justice, better economic opportunity, gender quality, and the rest, were rooted in a vision of a more just society. For the most part, we have accepted most of these ideas, and the strong majority believe that we are better for being more accepting of diversity and less socially and politically restrictive.

Perhaps what we are seeing is the rearguard action of those who do not share these ideas - those who believe that there ought to be a racial hierarchy, that the United States should be dominated by a particular racial/gendered/sexualized structure. That they cannot articulate the alternative in a way that appeals to anybody else suggests that, ultimately, they will lose. But that doesn't mean they won't cause as much pain as possible in the process.

Ultimately, this is where the radical libertarian view that "all speech is acceptable, no matter how painful" is problematic for me. Even if you're trying to create change, change that may be resisted by people who really don't want it, you use words that are designed to include and to heal, not to hurt. Go back and listen to MLK speeches. He challenges the prevailing orders of his day, but he never called anybody names. Never insulted them personally. Never used words to anger or harm. That some people got angry at what he said was a sad byproduct, not the main point.

When I seek solid ground on which to stand, I always come back to the Gospel. "Love the Lord your God with all your heart and soul and mind, and love your neighbor as yourself. On these two hang all the Law and the Prophets." I see no love in today's "conservative" free-speech movement - I see only anger and hatred. This is not of God.

Remember Conservatism?

In response to this news piece:

'Go Home to Mommy'

I remember a time when conservatives cared about decorum and civility. I remember when the conservative movement - the movement of William F. Buckley Jr., Peggy Noonan, George Will, Charles Krauthammer, Robert Bork, and others - held itself and others to high standards of discourse. I remember when they understood the importance of the Presidency as a role model for young Americans. I remember when they articulated a positive vision of America as the Shining City on the Hill.

I think that if that movement still existed today, I might well be a conservative. I see real value in those things. I think that how we treat each other matters, and that a politics based on scorn and contempt ultimately degrades us all.

This is not a conservative President. This is not a conservative movement. I don't yet know what it is, although "mean-spirited" comes to mind. Who among us would want our children acting this way?

Pie Crust Promises: Nuclear Edition

So the Trump Administration has signed a joint agreement with North Korea pledging to work towards denuclearization of the Korean peninsula. That sounds great - fewer nuclear weapons is a good thing. But even leaving aside the other problematic aspects of this "agreement" (like the US unilaterally giving up military exercises), Kim Jong Un's promise to talk about giving up his nukes reminds me of Mary Poppins' 'pie crust promise': easily made, easily broken.

Yes, I once published a journal article with that title along with my good friend Steve Saideman. I think there should be a prize for publishing an article with a Mary Poppins reference.

For those inclined to take North Korea's pledge seriously, I would direct you to Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (the NPT treaty, created in 1968 and still in force today):

Article VI

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control. [emphasis added]

The United States is a Party to this treaty, as are Britain, France, China, and Russia (the other recognized "nuclear states"). None has ever seriously contemplated a treaty on nuclear disarmament, outside of a brief rhetorical flirtation by the Reagan administration during a summit with Michael Gorbachev in the 1980s. There haven't even been serious international negotiations on drawing down nuclear stockpiles since the early 1990s.

All of this is simply to say that arms control promises - even in treaty form, much less in a joint communique following a meeting - are easy to make and equally easy to break. Which suggests that the news cycle of the past 24 hours really didn't tell us very much at all.